77.Memorandum from Eli Lilly and Company
Ltd (MIB 737)
1. Lilly welcomes the publication of the
Draft Mental Incapacity Bill. It has long been recognised that
legislation is needed to set out a clear legal framework for making
decisions on behalf of people who lack capacity to make decisions
for themselves. Our particular area of interest is in the use
of advance statements. While we welcome the introduction in the
Bill of advance refusals/directives, we believe the legislation
should also include provision for advance statements.
2. Lilly is one of the world's leading research
based pharmaceutical companies. We are committed to researching
and developing breakthrough medicines and currently provide treatments
for a range of mental health disorders, diabetes, cancer, coronary
heart disease, osteoporosis, severe sepsis and erectile dysfunction.
Lilly is a top ten supplier of medicines to the NHS by value and
as a signatory of the NHS Plan, we are committed to working in
partnership with the NHS.
3. Lilly strongly supports the Government's
aim of increasing choice for patients as we believe people should
be fully involved in decisions about their treatment and care.
For those who lose capacity, whether on a permanent or fluctuating
basis, the ability to make an advance statement is an important
means of retaining control and choice. Advance statements allow
people to write down when they are well what they would like to
happen were they to become unable to take decisions for themselves.
They are not necessarily confined to health matters but could
detail the individual's preferences in other areas of their life,
such as choice about their living arrangements.
4. Advance statements can have added benefits
when drawn up in consultation with clinicians and carers, as they
can assist the development of a positive therapeutic relationship.
Advance statements are a way of developing good practice by encouraging
professionals to discuss and plan treatment with their patients,
and they should be helpful to professionals in making decisions
about treatment for a person who has lost capacity. They should
also be helpful to family members and carers. The National Institute
for Clinical Excellence has recognised the value of advance statements
and encouraged their useSimilarly,
the Government's expert committee on mental health legislation
lead by Professor Richardson recommended that provisions should
be included in statute and complemented by the Code of Practice
the creation of an "advance
agreement about care" is routinely considered by care teams
and patients; and
that when created these agreements
would have sufficient formality to be regarded as proper statements
of a patient's capable wishes.
5. The Draft Bill does not currently include
any explicit reference to advance statements. When discussing
the clauses on advance refusals, the Explanatory Notes state "advance
statement[s] will form part of the person's `wishes and feelings',
and so would have to be considered under the best interests principle
in every decision that was taken on behalf of the person who lacked
6. We welcome the principle that the "best
interests" of the individual should be paramount in deciding
care and treatment, and are pleased that the Bill makes clear
that the individual's "wishes and feelings" should be
taken into account in determining what is in their best interests.
7. However, if a person has made an advance
statement it should not be necessary to look at what is in their
best interests, as the person has, when capable, said how he/she
wishes to be cared for. Their wishes should therefore be complied
with, without the need to consider what is in their best interests,
unless there are good reasons for not complying (see paragraph
8). One of the principles of capacity is that people can make
unwise decisionsso if someone when capable has made it
clear what they would like to happen to them if in the future
they become incapable, this should be complied with even if this
is not considered to be in their best interests. The person's
personal choice made when capable and in the full knowledge of
what the consequences of that decision is likely to be should
8. Lilly believes the Bill should include
a separate clause on advance statements, requiring any advance
statement to be followed save in certain circumstances. This proviso
is necessary for those cases where it will not be practicable
to comply with an advance statement. For example, asking for a
particular form of treatment could present major difficulties
and healthcare professionals should not be bound to provide the
treatment requested if it conflicts with their professional judgment
about the most appropriate treatment to give the person. It would
therefore not be advisable to give advance statements the same
status as advance refusals of treatment. However, consideration
could be given to setting out the general circumstances in which
advance statements could be overridden. In addition the legislation
should require the reasons for not complying with the advance
statement to be set out in writing (as in the Mental Health (Care
and Treatment) (Scotland) Act 2003) and also state that where
there are disputes in connection with advance statements these
should be referred to the court.
9. Advance statements are important in giving
people control and choice over their future care. They express
the individual's choices made at the time when he/she had capacity.
The Bill should include an additional clause to provide for advance
statements and should clearly set out the circumstances in which
they can be overridden.
4 National Institute for Clinical Excellence (2002),
Technology Appraisal Guidance 43: Guidance on the use of newer
(atypical) antipsychotic drugs for the treatment of schizophrenia. Back